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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-22 Daily Xml
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Controlled Substances (Destruction of Seized Property) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 February 2024.)

The Hon. C. BONAROS (11:31): I rise to speak in relation to the Controlled Substances (Destruction of Seized Property) Amendment Bill 2024. I think the way that this bill has been put to us is in terms of a cost saving and an administrative measure. Based on the briefings that I have had, I understand that there are upwards of some 800 pallets of seized prescribed hydroponic equipment, seized by SAPOL, sitting somewhere in a storage facility, making up about 90 per cent of undercover storage at that facility.

As I understand it, the lease on the facility is also due to expire, making this an opportune time to destroy the masses of confiscated equipment. I note that the legislation itself provides for the ability of the Commissioner of Police to actually sell equipment, but I hasten to say that this is probably one of those areas where the commissioner might think that it would be better to destroy rather than offer this equipment for sale.

An honourable member interjecting:

The Hon. C. BONAROS: It could be used for growing tomatoes, yes, it could be used for all manner of things, but I think we all understand the reluctance of the police in this instance to consider selling this, unlike other seized equipment. Apparently, based on the briefings I have had, nobody has ever asked for their equipment back, which is probably not surprising in the circumstances. There is a very serious side to every piece of legislation, indeed to all legislation, we pass through this place.

The bill does seek to allow the removal of that equipment and immediate transportation to a destruction site, placing it in a similar category to flammable, dangerous meth labs, which may already be destroyed on site. We all appreciate that a meth lab that is discovered by police does pose an immediate and real safety risk. That is certainly captured now—and I have just been going through the legislation while we have been sitting here—within the Controlled Substances Act when it comes to the destruction of evidence.

I have to say, based on discussions I have had, I do have concerns around the destruction of evidence, generally, before a person charged with an offence has the opportunity to test the case that is being mounted against them. I note that in this instance what we are actually suggesting, in terms of the destruction of this before—the reality is that, in practice, it is likely to be months before the defendant even got anywhere close to testing the veracity or otherwise of any evidence, particularly as it relates to DNA, before the courts.

I suppose the immediate concern, taking away from the storage issue that is obviously frustrating the police and costing a lot of money, is that we are trying to weigh that against the defendant's right to a fair trial—a fundamental principle that can sometimes be lost in the sea of dollar signs—the provision that allows the destruction of evidence before a person's guilt has been determined rather than at the conclusion of the trial, or even post discovery and the expiration date of appeal, as one would generally expect.

I acknowledge there are other provisions in this bill to allow for that, but there are also appreciable risks to those provisions that apply, so I indicate that I will be moving some amendments which I have had the benefit of discussing with members of the legal fraternity—who are way more experienced in this area than I am or, I have to say, anyone else is in this place.

However, I do note there are provisions in here; in fact, I understand that certain changes that were made some years ago to this part of the legislation that deals with seized property and forfeiture actually came from a leading authority, which raised the question of defendants actually getting off on charges as a result of the early destruction of evidence. That is not something any of us wants to see.

We do not want to go down the path of convenience and destroying evidence on site if that in any way, shape or form is likely to jeopardise what could otherwise potentially be a successful prosecution because we have raised questions about the destruction of that evidence. I am not so concerned about the costs, I am not so concerned about those other factors, but I am concerned that in addition to those fundamental principles that apply to a fair trial, the other risk is that someone gets off because that evidence has been destroyed.

That is not a good outcome at all. I have said before that I am not a betting person, but I would bet that if this legislation comes in unamended we will have challenges in our courts based on this very question and will probably be back here again reconsidering some of those.

When it comes to plants themselves, this issue was dealt with as a result of those earlier cases and leading authorities, by way of ensuring there are samples kept in evidence for an appropriate time to ensure that the veracity of the allegations made against a person can be appropriately tested by both sides. I am just not convinced that in this instance convenience should be put above those principles we have spoken to in relation to this bill and the previous bill. I am certainly not convinced that convenience should be put above those.

I will say that I have had some conversations with the shadow attorney-general in this space, and I also appreciate that there are other provisions well before we get to the destruction of seized property legislation that come into play here. I also acknowledge any concerns that have been raised about this becoming the norm once this law passes, if it were to be amended, such that every lawyer in town would automatically be making this application to the courts for that order. But, again, it is supposed to be a balancing act, so on one hand we are asking for the complete destruction of this property, if the police find it appropriate, and balancing that against a person's right to a fair trial and also not compromising any case against that person.

I, personally, am not satisfied that we have reached that balance appropriately. I will ask the Attorney some questions during the committee stage debate, but I would have thought that those fundamental legal principles, including the presumption of innocence, the right to a fair trial, the right to test evidence presented by the Crown and the important element of not jeopardising any case, warranted further consideration in this piece of legislation. So, regardless of where the government and opposition sit, I indicate, based on the discussions I have had with the legal fraternity, that I will still be moving those amendments.

I note also that the Hon. Rob Simms has filed amendments that relate to the proposed cost-recovery provisions. What are coming back to me, the Hon. Robert Simms, are similar provisions that we saw creep into our protest laws last year, so here we are again. I will support those amendments. I think the other consideration in all of this is certainly in relation to the destruction—and it applies equally on this—that the onus always falls on the defendant.

In terms of this bill, I think we will see that there are other ways and means of destroying this property, if that is the appropriate thing to do, but certainly questions would be raised about how appropriate or not the cost-recovery provisions proposed are, both in this piece of legislation and others that we have seen brought before this parliament. I do note that the Law Society reflects and shares the same concerns. They say in their correspondence that:

It appears likely that an offender will be facing considerable difficulty in meeting an application of payment for costs, including obtaining the relevant information. It is likely to be difficult for an offender to test the amount sought, let alone put an alternate compelling view to the Court as to the reasonableness of the costs alleged to have been incurred. Accordingly, Members of the Society's Criminal Law Committee queried whether the legislation should make further provision for transparency, such as a requirement that the Commissioner on request will provide the basis of the calculation of the alleged reasonable costs.

None of these considerations should be deemed or even contemplated as sympathy for offenders and soft on crime—they are not—but they are very much in line with well understood legal principles. I suppose overwhelmingly one of the things we also have to ensure in our legislation is the right to a fair trial. I think everything I have said speaks to that but also speaks to the issue of potentially compromising prosecutions that could otherwise be successful but have questions cast over them as a result of something that comes down to a cost-saving measure by way of destroying evidence.

I do note on that front—and I will speak to this further on the amendment—that there are lots of ways of dealing with this to ensure that that property can be destroyed at a point in time once an alleged offender has had the opportunity to test the veracity of any DNA or fingerprint evidence, or whatever the case may be. With those words, I look forward to the committee stage of the debate and indicate that I will be asking the Attorney a series of questions in relation to those matters I have raised.

The Hon. R.A. SIMMS (11:44): I rise to speak on behalf of the Greens on the Controlled Substances (Destruction of Seized Property) Amendment Bill 2024. In doing so, I indicate from the outset that the Greens are not supportive of this bill. It appears to be driven by a desire to minimise inconvenience for the government and, indeed, the courts, and that is not a good reason to infringe the rights of defendants.

It is a very important principle, actually, in our justice system, that we do not junk the rights of individual defendants simply because it is inconvenient or because there is a significant administrative burden that is associated with the maintenance of justice in our system. I think the Hon. Connie Bonaros has detailed those concerns. I do not intend to reventilate those arguments, but I think the points she has made are very sound, and, indeed, the Greens would associate ourselves with those remarks.

The bill allows the police to destroy hydroponic equipment that has been used for illegal purposes at the time when they would typically seize it. It provides for cost recovery of collection, transportation and dismantling of equipment without exceeding a maximum set by regulations. I understand it contains transitional provisions that cost recovery is only for cases after the bill commences. However, it does allow the police to destroy equipment that they already have in storage. I think this is one of the key issues that the Hon. Connie Bonaros has touched upon and which does concern us in the Greens as well: the impact on potential evidence.

We are concerned, also, about the cost-recovery provisions. Indeed, I refer to correspondence from the Law Society addressed to the Attorney-General where they note that:

The Society notes some concern as to a convicted person being required to meet these costs given the difficulty in ascertaining whether the costs incurred are indeed reasonable. As you may be aware, the Society raised similar concerns at the costs recovery aspects in amendments to section 58 of the Summary Offences Act…effected by the Summary Offences (Obstruction of Public Places) Amendment Act 2023 (SA).

I will not reopen that festering sore on our democracy, Mr President. You know my views on that draconian piece of legislation. Suffice to say the Greens are persuaded by the concerns of the Law Society, and that is why we are putting forward an amendment that would remove those particular provisions. I look forward to the discussion in the committee stage, but, as I say, we are not supportive of the bill for the reasons I have outlined.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:47): I thank members for their contributions on this bill. I think all speakers have raised feedback that has been provided by the Law Society, so I will address that in a moment. I will say, though, that we did receive feedback on the bill from organisations that regularly provide feedback on legislation before this place. I know that sort of feedback is particularly useful—I remember particularly from my time in opposition and I am sure it is for the crossbenches as well—in getting an understanding of some of the views those stakeholders have.

The Law Society posed—and I will get onto that in a minute—some questions about the element of charging that the Hon. Ms Lensink referred to, that the Hon. Mr Simms has amendments about and that the Hon. Connie Bonaros referred to. I note that the Law Society in their submission had questions about that. They did not have any questions about or raise any concerns about the rest of the bill and how it operates, and the Bar Association did provide a submission, but the submission was that they were not going to pass any commentary on this bill.

I appreciate that there were questions raised by the Law Society submission in relation to the cost issues, but neither the Bar Association nor the Law Society raised concerns about the destruction per se, which probably stands in stark contrast to some of the ways the Hon. Rob Simms was trying to draw analogies with this bill.

The Law Society did express concerns about the ability of a convicted person to test the reasonableness of the costs alleged to have been incurred by the police. The Law Society suggested including a legislative requirement for the Commissioner of Police to provide on request the basis for the calculation of the costs being sought. SAPOL has indicated they intend to provide the defendant with a breakdown of the costs that are being sought at an appropriate time in the prosecution process. The categories of cost might include, for example, a call-out fee, transportation and other costs.

It will be for the court to determine whether the costs being sought are reasonable, and in order to do so, in the usual course of things, it is expected that the court will also require transparency in order to be satisfied that the costs incurred are reasonable in the circumstances. The court is adept at using its judgement to assess such matters without further prescription. I trust that answers the honourable member's queries in relation to the cost issue and I look forward to debating other issues honourable members have in relation to this bill at the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I was going to ask the Attorney if he could confirm that this bill was put to the government in terms of one of those cost-saving measures insofar as we know that we have this situation now where all this hydroponics equipment is collected and has to be stored. I think, based on the advice that I have had, there are hundreds of pallets of this stuff sitting somewhere, which is onerous for the police because they do not have anything to do with it and they cannot seem to find a way to deal with it after these matters are well and truly over. Is that the government's basis from the Attorney in relation to this piece of legislation?

The Hon. K.J. MAHER: I am advised that it is believed that it was initially raised by the police but, of course, when any part of government raises suggestions that form part of these bills, advice is taken on how it would work, and how it would operate. I can confirm to the member that, yes, there are very significant amounts of prescribed hydroponic equipment that are stored.

I availed myself of an opportunity to go out to the police store facility at Ottoway a few weeks ago. I think at the point in time when they provided statistics there were something like 490 pallets of prescribed hydroponic equipment making up somewhere in the order of 56,000 individual items, so it is a very significant impost on police to be storing this equipment for sometimes years at a time until the very final conclusion of appeal rights have run out in many of these areas.

I think the suggestion was that police resources would be better spent doing what police do best: enforcing laws and catching criminals rather than spending resources storing tens of thousands of pieces of equipment.

The Hon. C. BONAROS: I stand corrected. I think I said 800; it is 490. Just on from that, there is nothing in the provisions now that prevent the police at a time that they deem appropriate from destroying that equipment and thereby eliminating the need to keep it in storage indefinitely. Can the Attorney confirm that and then I will have a follow-on question.

The Hon. K.J. MAHER: I am advised that there are provisions in the legislation that require such equipment to be kept pending finalisation of proceedings, but that there is an ability for forfeiture orders to be made which could result in the destruction. But even with those provisions as they currently stand and their application, as I have said, there are still some 56,000 individual items that under our current legislative regime are required to be stored.

I might indicate it is the government's view that, if the requirement to make individual applications to the courts on every single piece of equipment was put into this bill as proposed by the honourable member, it would probably render the whole purpose of this bill null and void and there may be no point proceeding with it.

The Hon. C. BONAROS: I appreciate that and I suppose in terms of that balance that we are talking about, the right to a fair trial and those well entrenched legal rights that exist are what we are weighing against rendering this bill null and void.

From what the Attorney has just said, is he aware of any case law in this area where there have been acquittals based on the destruction of evidence, particularly in relation to previous changes to these relevant sections where there were acquittals as a result of evidence being destroyed before the veracity of that evidence could be tested by the defendant?

The Hon. K.J. MAHER: My advice is that, having requested information from SAPOL and the DPP, they could not identify any cases where the defence had requested equipment to be tested.

The Hon. T.A. FRANKS: Supplementary: does that include a recent Victor Harbor case?

The Hon. K.J. MAHER: I am advised that advice was provided at the start of when this bill was drafted.

The Hon. C. BONAROS: Is the Attorney aware of any case law preceding those relevant sections that actually gave rise to the need for those relevant changes to provisions around cannabis plants themselves and the need to require clippings from those plants for a period for the same reasons that I have outlined today? In other words, are there pre-existing case law outcomes that resulted in an acquittal that saw the changes that we are now amending again to expand the breadth of because of an acquittal over DNA evidence and so forth?

The Hon. K.J. MAHER: I thank the honourable member for her question. I am not aware of any case law, but we have not specifically looked for case law in relation to the illegal drugs themselves rather than the equipment, which is what we are talking about in the case of this bill.

The Hon. C. BONAROS: One of the issues that has been raised in relation to this bill is the further clogging up of the courts in terms of orders being made and normalised as part of this process. Can we rule that out in terms of the destruction of this sort of equipment and any subsequent issues coming to light in terms of the veracity of the evidence that would have been provided from that equipment and it not being made available for testing by defendant's legal counsel?

The Hon. K.J. MAHER: I thank the member for her question. In the development of this legislation, as I outlined before, views were sought from the Bar Association and the Law Society, amongst a range of others. As I said, the Law Society raised concerns that go to the Hon. Robert Simms's amendments, but on any of the issues that the member is currently raising, neither of those groups provided any commentary or concerns. The police and the DPP have been involved in the development of this bill and they have not raised any concerns. I think the honourable member talked about an inadvertent consequence in her view that it could impede a prosecution. That is certainly not something that those who conduct these prosecutions very frequently have raised with us.

I think the honourable member's first question was in terms of making an application to the court for every piece of equipment. Yes, it is entirely conceivable that, with 56,000 pieces already in storage and pallets' worth being seized regularly, if there was a requirement for a court order for every one of those tens of thousands of pieces of equipment, it may be a very significant drain on the court system.

Clause passed.

Clause 2.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 2, after line 14—Insert:

(2a) Section 52E—after subsection (6) insert:

(6aa) If a charge is laid, or is to be laid, for an offence in relation to property referred to in subsection (2)(c), the property must not be destroyed under subsection (2) unless—

(a) the defendant has, by written notice, consented to the destruction of the property; or

(b) the Magistrates Court has made an order allowing the destruction of the property.

(6ab) The Magistrates Court may make an order under subsection (6aa)(b) if the Court is satisfied that the destruction of the property is justified in the circumstances and will not affect the defendant's right to a fair trial.

The amendment itself is very straightforward. It provides that if a charge is laid or is to be laid for an offence in relation to property—namely, the equipment that we have been talking about—the property must not be destroyed unless the defendant has, by written notice, consented to the destruction of the property, or the Magistrates Court has made an order allowing the destruction of the property. The Magistrates Court may then make an order, if the court is satisfied that the destruction of the property is justified in the circumstances and will not affect the defendant's right to a fair trial.

There are two points that I have been banging on about today: one is the right to a fair trial, and the other is compromising what could otherwise be a successful prosecution on the basis that evidence has been destroyed. I do not make either of those points lightly. I do note the Attorney's comments in relation to the Bar Association's position and the Law Society's position. I note also that I have had a number of discussions with members of those bodies, including the President of the Bar Association, in relation to this.

When I move this, I say that just in the last 24 hours the number of examples and scenarios that we have come up with are endless. You could have a situation where you have a share house and there are questions over whose fingerprints were found on equipment. You could have a question over something that is deemed to be hydroponic equipment but is actually plants growing in grandma's backyard, and the police ripping out an irrigation system.

I am sure someone in here will say, 'That's all well and good, if grandma's irrigation system is ripped out, or whatever the case may be, her hydroponics for growing tomatoes, then she could be compensated for that.' The underlying premise in relation to any number of scenarios that could validly exist is that the defence will never have the opportunity to test the veracity of the prosecution's case if the evidence is destroyed.

I am not suggesting by this amendment, by any stretch of the imagination, that we keep it indefinitely. I think the first part of the amendment—which actually says the defendant could, by written notice, consent to the destruction—could deal with some of that aptly. We are leaving it to the courts, and we have just talked about the importance of the court's discretion in this area to make those determinations, but if a court genuinely thinks that something could compromise a defendant's right to a fair trial, then that is the only basis where you could see such an application being made.

Again, we are not talking about indefinite keeping of this stuff. There are points along the line of one of these cases where the police could then reasonably step in and seek to destroy the evidence after the committal process. The reality also is that it will be months, probably two or three or four months, before a defendant has managed to get legal advice around their issue, let alone test the veracity of the evidence against them. In this case we are talking about evidence that would have been destroyed.

I note what the Attorney said in relation to the potential for acquittals, but it is a very real risk that we run when we start destroying evidence. I note also the difference between having to keep this evidence versus meth lab equipment, because that is an appreciable risk of exploding and so we deal with that accordingly. I do note also previous changes to this legislation that arose out of previous acquittals in relation to plants themselves and the forensic evidence around those plants. That is actually why we have those provisions in the first place.

If you have a case that raises doubt over the prosecution's case and ends in an acquittal, that is not a good outcome, and we are giving rise to the potential, at least. I do not need to tell anyone in this place that, if there is that sort of potential, lawyers are going to challenge it to the nth degree. The notion that somehow we are going to clog up the courts with applications to the Magistrates Court and the court is not in a position to make its own determination as to whether something is reasonable in the circumstances based on that fundamental principle of a defendant's right to a fair trial is one consideration.

But at the other end of that is the very real risk that destroying this at the initial point of it being discovered could compromise prosecution cases, and that is not a good outcome. It is not a good outcome for the Crown, and it is not a good outcome for the community. There is nothing in here that is unreasonable. I cannot see how we could possibly be saying that the convenience to SAPOL of having to store this stuff indefinitely, which would not have to be done under this because we can pick a point in time at which it is now okay to destroy this, outweighs the defendant's right to a fair trial and the risk that exists in terms of acquittals and challenges as a result of the destruction of evidence.

The Hon. K.J. MAHER: I thank the honourable member for her contribution. I note her genuine concerns that she has raised in relation to this. The government does not share those, though. As I have said, neither SAPOL nor the DPP can remember a single occasion when the issue of the equipment has been tested by the defence in relation to one of these charges, and I would think there have been many thousands of these charges go through our courts given there are 56,000 separate items still stored at the Ottoway facility.

In relation to the honourable member's hypothetical situation of grandma's hydroponic tomatoes, there would be all sorts of different ways that the defence could raise and test that as a theory, including having grandma on the stand to talk about her hydroponic tomatoes. The idea that because the equipment is destroyed there is not that possibility of a defence being raised, in that hypothetical example if it were to happen, I am not sure is necessarily the case.

The other thing I am advised is that one of the reasons that contributes to there being the need for so much storage of equipment is that it is not uncommon that when hydroponic equipment is seized the police cannot locate a particular defendant, that is, you have to prove that nexus between the person and the equipment. There is equipment for which a case has not been finalised because no defendant can be ascertained that is sitting there contributing to these 56,000 separate items.

So whilst I acknowledge the honourable member's concerns, the fact is that in the consultation the legal stakeholders—the Law Society, the Bar Association, the ALRM, the Legal Services Commission—did not raise concerns with prejudice to defendants, and in the consultation with the police and the DPP there were no concerns raised with prejudicing a prosecution, and we are comfortable that this strikes the right balance.

The Hon. J.M.A. LENSINK: I know the mover of this particular amendment has had discussions with the shadow attorney-general, the member for Heysen, on this particular topic. I think she has canvassed well in her contributions that it is potentially not ideal. I think we all appreciate that and that the volume of equipment has practical outcomes. I think she has put it well that we are seeking a balance. Our shadow attorney-general is particularly concerned that these amendments moved by the mover may have implications for a number of court applications that may well be vexatious or may well become a default position for defendants, so on balance we are not able to support them, but we do appreciate her bringing them to the Legislative Council for debate.

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 2, lines 15 to 20 [clause 2(3)]—Delete subclause (3)

This amendment deals with the issue I spoke about recently; that is, it removes the provision that allows for the cost recovery, and that responds to the concerns that have been expressed by the Law Society.

The Hon. K.J. MAHER: I thank the honourable member for moving this amendment. I have acknowledged that, of the legal organisations that we wrote to, the one comment that came back was from the Law Society about the cost issue. In the summing-up of my second reading, I summarised that it would be up to a court to determine whether the costs being sought are reasonable and in order. It would be expected that the court will also require transparency and be satisfied that the costs actually incurred were reasonable in the circumstances. So we are comfortable with what is in the bill and will not be supporting the honourable member's amendment.

The Hon. C. BONAROS: I indicate that I will be supporting the amendment. I just reflect on the Attorney's words in terms of whether the court thinks it is reasonable and how that stands in contrast to the last amendment that was just moved. In this instance, I think the Hon. Robert Simms has made a very valid point, which is backed by the position of the Law Society and others. I indicate that I will be supporting it.

The Hon. J.M.A. LENSINK: The Liberal Party will not be supporting this set of amendments. We think it is appropriate that the court makes decisions on these matters, and we appreciate that there may be opportunities for cost recovery, limited as they are likely to be.

Amendment negatived; clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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